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REPORT.

The Attorney-General, in obedience to the resolution of the Assembly, referring to him the petition of the inhabitants of the town of Broome, and requiring “his opinion whether any provision can be made by law to supply vacancies occurring in the office of justice of the peace for towns, either for the unexpired term of such office, or until the next annual election in such town,” respectfully submits the following

REPORT:

The petitioners represent that one of the justices of the peace of the town of Broome has removed, and his office become vacant, since the last annual town-meeting: And they pray that the law may be so amended that the vacancy can be filled by a special town-meeting, or otherwise. How much of the term is yet unexpired, the petitioners do not state.

All vacancies in the office of justice of the peace, except those occurring during the last year of the term, may be supplied at the next annual town-meeting.–1 R. S. 128, sec. 8. 3 R. S. append. 101. The exception of vacancies occurring during the last year of the term, was made at a period when justices were chosen at the general election in November, and as less than two months after the election would elapse before the term would expire, it was not deemed expedient to fill the place. But since a change has been made in the time of electing justices, such vacancies may continue for eight or ten months after thc town-meetings at which the place might have been supplied. It is respectfully suggested that so much of the latter clause of the eighth section above referred to as relates to the office of justice of the peace ought to be repealed. This suggestion involves no constitutional difficulty, and should it be adopted, all vacancies in the office existing at the time of the annual town-meeting may then be supplied.

But as no provision has been made for supplying vacancies in the office by appointment or special town-meetings, some of the

towns will occasionally be deficient in the number of their justices for six, eight and even twelve months. This presents the questions involved in the resolution of the Assembly:

FirstWhether provision can be made by law for filling vacan cies by appointment or special town-meetings; and,

Second—Whether the person thus appointed or elected can be authorised to hold for the residue of the unexpired term, or only until the next annual town-meeting.

By the Constitution, justices of the peace are to hold their offices for four years.--Art. IV. sec. VII. The amendment of that section is in the following words: “ That the people of this State, in their several towns, shall, at their annual election, and in such manner as the Legislature shall direct, elect by ballot their justices of the peace; and the justices so elected in any town, shall immediately thereafter meet together, and in presence of the supervisor and town-clerk of the said town, be divided by lot into four classes of one in each class, and be numbered one, two, three and four; and the office of number one shall expire at the end of the first year, of number two at the end of the second year, of number three at the end of the third year, and of number four at the end of the fourth year, in order that one justice may thereafter be annually elected.”

The Attorney-General entertains no doubt that the Legislature can authorise the filling of a vacancy in the office of justice of the peace, either by appointment, special town-meeting, or in any other mode which shall be deemed proper: and that the person thus appointed or elected, may be empowered to hold the office for the whole of the unexpired term, although one or more annual townmeetings may intervene before its termination. It is a case not provided for by the Constitution; and consequently as fully within the power of the Legislature as though that instrument had said nothing about the mode of conferring the office of justice of the peace.

So far as relates to the first branch of the subject--the power of the Legislature to prescribe the mode of filling vacancies—this question has been settled by the Legislature, and has been acted upon in a number of instances. The Constitution provides that sheriffs and clerks of counties, including the register of the city

and county of New York, shall be chosen by the electors of their respective counties.--Art. IV. sec. VIII. The Governor has been authorised to fill vacancies in those offices.—1 R. S. 124, séc. 49. 3 R. S. append. 98, sec. 2. This power has been exercised by the appointment of a register of the city and county of New-York; the office having become vacant by the death of the incumbent. It was also exercised by the appointment of a sheriff of the county of Genesee; the office having become vacant in consequence of the neglect of the incumbent to renew his security, pursuant to law. It is understood that the power has been exercised in other cases.

The Secretary of State, Comptroller, &c. are appointed by the Legislature.-Const. art. IV. sec. VI. The Governor has been authorised to fill certain vacancies in those offices.-1 R. S. 123, sec. 43. The Constitution provides that a great number of officers shall be appointed by the Governor and Senate. Vacancies in those offices may, with few exceptions, be supplied by the Governor.–1 R. S. 123, sec. 42.

Whether a person appointed or elected at a special town-meeting to supply a vacancy in the office of justice of the

should be authorised to hold for the whole of the unexpired term, or only until the next annual town-meeting, is a question of expediency only. The power of the Legislature seems as unquestionable in relation to the whole, as it does in relation to a part of the unexpired term. Both cases depend alike upon the fact, that the Constitution has made no provision whatever on the subject of vacancies. A careful examination of the clause will prove the justice of this remark. If divested of every thing foreign to the present inquiry, it will be seen that the Constitution has only provided for an original or first election of four justices in each town; and for such a classification of the persons elected, in relation to the length of their respective terms of holding, that “one justice may thereafter be annually elected," as the terms of the different classes expire. The first branch of the clause—that the people shall at their annual election, elect their justices of the peace-applies only to the original or first election of four justices. It is immediately followed by a provision that they shall be divided into four classes, so that the office of one justice will expire ar.nually. This is inapplicable to any subsequent election. The last branch of the clause only provides for supplying the places of those whose regular terms will expire. There is nothing in the Constitution looking

peace,

beyond the original election of four justices for each town, and the regular supply of their places as their terms of holding severally expire.

The Constitution having made no provision whatever on the subject of vacancies occurring by the death, resignation or removal of the incumbent, it follows that those cases are entirely within the power of the Legislature; and that as well for the whole as for any part of the unexpired term.

Respectfully submitted.
GREENE C. BRONSON,

Attorney-General, April 10, 1833,

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